On May 19, a federal court in Arizona approved an agreement between the plaintiffs and the state, under which Ariz. Rev. Stat. § 13-1425 — commonly known as Arizona’s revenge porn law — is not to be enforced pending resolution of a motion for a preliminary injunction. The plaintiffs, represented by the ACLU of Arizona, include booksellers, a newspaper conglomerate, and other publishers.

Their argument in the motion, below, is that while Arizona has legitimate goals in combating revenge porn, the law is an overbroad, content-based regulation — and thus runs afoul of the First Amendment — in that it could apply, if read literally, to a wide variety of images that are most assuredly not within the realm of “revenge porn.” That’s because, plaintiffs (rightly) argue, the law lacks . So, for example, if the Arizona law were being enforced (and assuming Arizona had some jurisdiction over me), I could a felon for publishing the Napalm Girl photo: 1

The plaintiffs cite, among other things, several alleged defects which prevent the law from being narrowly tailored to suit its intended purpose (preventing the use of nude images to harass):

A lack of specific intent: the law imposes a negligence standard (“knew or should have known” of the depicted person’s lack of consent), which the plaintiffs argue is impermissible under the First Amendment because whether someone consented to a photo’s publication is often difficult to tell in the absence of explicit consent. Indeed, the law would apply even where it’s impossible to tell who the photo depicts at all.

No requirement that it be shown that harm resulted: Such an exception might draw the law closer to the harm it seeks to address: the use of nude photos to harass. Many advocates argue that such a requirement would do further harm to victims by forcing them to recount their experience to a court, which may deter victims from reporting the crime or cooperating with a prosecution. While this is true, society requires as much from victims of far more heinous and destructive acts, and such a requirement would prevent use of the law where no harm resulted.

No exception for “valuable or newsworthy” events: This is the “Anthony Weiner” exception. However, even if the law had such an exception, it may be difficult to draft with acceptable precision. Whether something is “valuable” or “newsworthy” is an inherently subjective determination. Some might argue that publishing Anthony Weiner’s nude photos is not, itself, newsworthy — it’s just as newsworthy to state that the photos exist without publishing them, and little benefit is derived from actually publishing the photos. For another recent example: were photos of celebrities “newsworthy” after they had been leaked online? There has to be a line somewhere, but it may be impossible to draw it without being impermissibly vague.

The law will remain unenforced until at least August 31, when the court is set to hear oral arguments. Briefing will be completed by the end of July. Unless Arizona’s legislature convenes a special session — as its next regulation session won’t begin until next January — the state’s revenge porn law is likely to be struck down.

Motion for Preliminary Injunction:

Order enjoining enforcement by stipulation:

Notes:

Perhaps, anyway. Phan Thi Kim Phúc, the woman pictured in the photo, has long since started a foundation to assist child victims of war, and I’d be surprised if she objected to the public display of the photo. So this may not be the best example. But had Arizona’s law been enacted in 1972, when the photo was first published, the question of whether the publisher “knows or should have known” that she did not consent to its disclosure. For a more recent example, the plaintiffs cite the Abu Ghraib photos. In any event, Arizona’s failure to include a newsworthiness exception to the law significantly weakens its viability the First Amendment. ↩